Weapons Modernization

How the Clinton administration is expanding its power before it leaves town.

Michael W. Lynch from the March 2000 issue

(Page 2 of 2)

His underlings were quick studies. Environmental Protection Agency head Carol Browner, faced with a hostile Congress, figured she'd update the environmental laws administratively--that is, through regulations. She handed down a set of strict clean-air regulations in 1997.

Writes National Journal's Cannon: "Browner--also without the benefit of authorizing legislation--has streamlined the procedures for cleaning up the abandoned inner-city industrial sites known as `brownfields'; nearly doubled the list of chemicals whose release into the atmosphere companies must disclose publicly, under the EPA's `right-to-know' regulations; and, under a directive from Al Gore, teamed up with the USDA to write a blueprint for water cleanup that is nothing short of an administrative rewrite of the Clean Water Act." Bragged Browner, "We completely understand all of the executive tools that are available to us. And, boy, do we use them."

Congress is not without fault. If members had the will, they could hold hearings and stop much administrative legislating. Says Michael Greve, executive director of the Center for Individual Rights, a public interest law group, "If they wanted to stop it, they could." But the fight can be tough. Rep. David McIntosh (R-Ind.), chairman of the House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, has been trying to get the EPA to refrain from implementing sections of the still unratified global warming accords drawn up in Kyoto. McIntosh can't find authorization in the Clean Air Act to regulate carbon dioxide. The EPA insists the authority is there, if only in spirit.

"The Clean Air Act is not a regulatory blank check," says McIntosh. "EPA is claiming a power Congress has not delegated for the apparent purpose of implementing a treaty the Senate has not ratified. I am determined to block any such usurpation of legislative power."

Ultimately, a federal court may have to decide. Courts have not been a friend to Clinton's EPA. It has lost two-thirds of the 65 cases brought against it in the U.S. Court of Appeals in the District of Columbia, according to a soon-to-be-released report by the Reason Public Policy Institute.

The end is near, however, and before the Clinton's appointees leave office they need to consolidate their gains. While in power, a bureaucrat can achieve much with what is known as "sub-regulatory guidance." Through an unrecorded phone call, or a letter that doesn't need approval from the central office and therefore isn't "official policy," a bureaucrat advises a recipient of federal funds how things ought to be done. And since the bureaucrat is the liaison to those higher-ups who control federal money, those "unofficial opinions" are taken seriously.

The Occupational Safety and Health Administration's recent "letter of interpretation" informing a Texas company that it was responsible for conditions and accidents in its employees' home offices is an example of sub-regulatory guidance. OSHA bureaucrats spent two years drafting the letter, which at some point would have been applied to other companies and perhaps even used in court. Yet when the contents wound up on the front page of The Washington Post, it took less than 24 hours for Labor Secretary Alexis H. Herman to claim her office never reviewed it and it wasn't official policy.

Come 2001, a Republican appointee might be working the phones and writing the unofficial letters, so Clinton's enforcers need to codify their views. At the same time, they may just set themselves up for a lucrative life of private policy-making.

This is the central issue in the expansion of Title IX, and the reason that the Clintoncrats and their allies fight so fiercely for such regulation. Ultimately, the proposed regulation is not about helping any victims of purported sex discrimination. A woman already has a choice of ways to sue any government agency, private business, or government contractor she feels has discriminated against her.

Take the case of a forestry workshop run by the state park, the example cited in the Federal Register. If the park passed on hiring a qualified woman so as to hire a less qualified man, the aggrieved applicant could vindicate her rights under Title VII of the 1964 Civil Rights Act. The Equal Employment Opportunity Commission would investigate her complaint and, if it concluded that the charge was valid, pass the lawsuit on to the Department of Justice to pursue on the woman's behalf. If the EEOC didn't find fault, the woman could sue on her own. If a private company rather than a government agency is involved, Executive Order 11246 prohibits the company from discriminating against the woman. The Department of Labor's Office of Federal Contract Compliance would be responsible for investigating. If the woman was dissatisfied with the outcome, she could still go through the EEOC and file her own Title VII suit.

Title IX's expansion is, in the words of Cornell political scientist Jeremy Rabkin, "weapons modernization" for bureaucrats, lawyers, and left-wing activists. As CIR's Greve notes, "Title IX quotas in sports are the single hardest quotas we have." Combine these quotas with the mechanism that allows third parties to lodge complaints, as well as the compensatory and punitive damages Title IX makes possible (not to mention the inflated attorneys' fees), and the new, improved Title IX becomes the perfect vehicle to keep soon-to-be former political appointees employed as saviors of society's numberless victims.

There is, after all, plenty of unfinished business to attend to. Many universities and colleges still use the SAT for admissions. Some private companies still use standardized tests as a factor in hiring decisions. Title IX-style quotas might soon improve immeasurably the education programs in America's prisons, not to mention the possibilities for lectures on dance. True, Congress could hold oversight hearings and spoil all these social improvements. But don't count on it.

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